Is public health care and insurance constitutional?

megaprogman said:

None of these clauses—or any others found in the Constitution—gives Congress the power to create a government healthcare system.

The “General Welfare” clause gives Congress the power “To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States.” This clause is not a grant of power to Congress (as constitutional law professor Gary Lawson has shown). It is a limit to a power given to Congress. It limits the purpose for which Congress can lay and collect taxes.

During the founding, some Anti-Federalists were concerned that this clause “amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare.” But James Madison, the “Father of the Constitution,” explained very clearly that it granted no power to Congress. If the “General Welfare” clause gives Congress the power to promote the general welfare, then why specifically list the other powers in Article I, such as the power to establish post offices and post roads, or to coin money? Wouldn’t it be redundant to list them?

In short, as Madison argued, Congress derives no power from the general welfare clause, which merely serves to limit Congress’s power to lay and collect taxes. Congress can only do so for purposes of common defense or general welfare, in the service of the powers granted to it elsewhere in Article I.

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megaprogman said:

The Founders gave the federal government only four areas of power: taxes, paying the debts, providing for the general welfare (that’s not the same as providing the general welfare), and providing for the common defense. That is it. All four powers are identified before the first semi colon. Everything that follows are simply qualifiers of these four.

The Founders did not dare to leave the phrase “general welfare” for future power grabbers, as there is no telling what they could do with this vague concept if left undefined. They understood that it is the nature of all governments to grow. As a result, clauses 2-9 list 14 powers that comprise “general welfare.” Five deal with borrowing money, regulating its value, and dealing with counterfeiting. The other nine powers include naturalization, bankruptcies, establishing post offices, protecting inventors and authors, establishing “tribunals inferior to the Supreme Court” and “regulating commerce with foreign nations and among the several states.

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megaprogman said:

The "Necessary and Proper” gives Congress the power “to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States.” Like the general welfare clause, this clause was not a stand-alone grant of power to Congress. Rather, it authorizes Congress to make laws that are necessary (and also proper) to make the other grants of authority in Article I effectual.

In other words, the necessary and proper clause cannot itself authorize national public health insurance. One would have to show that national public health insurance is necessary and proper to execute some other power granted in the Constitution.This puts the proponents of nationalized healthcare back where they started

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megaprogman said:

Lastly, proponents might argue that national health insurance is part of Congress power “to regulate commerce…among the several states.” While progressives have often used this clause to expand the federal government, it does not apply especially to the creation of a national health insurance, because to create and engage in commerce is not the same thing as regulating commerce among the several states.

Nobody during the framing generation expected the commerce clause to expand the federal government’s authority to anything relating to or resembling commerce. James Madison wrote that it is a power “which few oppose, and from which no apprehensions are entertained.” The clause was designed to prevent some states from taxing goods that passed through their boundaries as those goods proceeded to market.

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political_debater said:

For all your national health care and insurance propponents out there!

How is the "general welfare" "necessary and proper " and "regulating commerce" clause justify national health care and mandating americans to buy health insurance?

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drz-400 said:

Just to "mandate" insurance those clauses are not needed. The fine for not having insurance will be paid throught the tax code and is constitutional because of the 16th amendment.

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political_debater said:

For all your national health care and insurance propponents out there!

How is the "general welfare" "necessary and proper " and "regulating commerce" clause justify national health care and mandating americans to buy health insurance?

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drz-400 said:

Just to "mandate" insurance those clauses are not needed. The fine for not having insurance will be paid throught the tax code and is constitutional because of the 16th amendment.

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Korimyr the Rat said:

As for the latter, it doesn't, and is also a violation of the private citizens' rights to enter or not enter contracts. It's nothing more than a handout for the parasites in the insurance industry and should be overturned, condemned, and the lawmakers responsible for it censured.

National health service, however, is necessary and proper to promote the general welfare of the United States-- and furthermore is essential to having effective countermeasures to bioterror attacks, making it an issue of national security. Keeping the American people healthy is vital to keeping the American people productive, and our productivity is what enables us to have the high standard of living we now enjoy.

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Harry Guerrilla said:

The fine is unenforceable by law.

You need to read the bill.

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drz-400 said:

That might be argueablee, whether the minimum fine is truly an income tax, but the % of AGI "fine" is defenitely an income tax.

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drz-400 said:

why does that make it unconstutional?

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Harry Guerrilla said:

As per the constitutionality of the bill itself, well it can't be because insurance is not conducted through interstate commerce.
It is dealt with on a state by state basis.

General welfare doesn't apply because that is a gross distortion of The Constitution.
Unless you're seriously going to tell me that the Constitution both limits government and gives it infinite powers at the same time.

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drz-400 said:

Its a tax on income that is apparently elective. How is that not allowed under the 16th amendment?

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Harry Guerrilla said:

An income tax can be applied/changed at any given time.

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drz-400 said:

What do you mean?

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Harry Guerrilla said:

Income taxes are completely constitutional as The Constitution says.
The 16th amendment seems to make sure that there are no limits to taxation on income, which is unfortunate.

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Harry Guerrilla said:

"However, it is not subject to the enforcement provisions of subtitle F of the Code. The use of liens and seizures otherwise authorized for collection of taxes does not apply to the collection of this penalty. Non-compliance with the personal responsibility requirement to have health coverage is not subject to criminal or civil penalties under the Code and interest does not accrue for failure to pay such assessments in a timely manner."

It's in the bill that it's unenforceable.

JCX-18-10

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The penalty applies to any period the individual does not maintain minimum essential
coverage and is determined monthly. The penalty is an excise tax that is assessed in the
same manner as an assessable penalty under the enforcement provisions of subtitle F of
the Code.2 As a result, it is assessable without regard to the restrictions of section
6213(b). Although assessable and collectible under the Code, the IRS authority to use
certain collection methods is limited. Specifically, the filing of notices of liens and levies
otherwise authorized for collection of taxes does not apply to the collection of this
penalty. In addition, the statute waives criminal penalties for non-compliance with the
requirement to maintain minimum essential coverage. However, the authority to offset
refunds or credits is not limited by this provision.

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